Judgment :- Ramkumar, J. The interesting question which comes up for consideration before us upon a reference by a Division Bench is the following:- “Whether the statement of an approver examined before the appropriate Magistrate under clause (a) of sub Sec.(4) of Sec.306 Cr.P.C., is relevant and admissible under Sec.33 of the Evidence Act during the subsequent trial in which he is not available for examination by reason of his death in the meanwhile?” The referring Bench was of the opinion that in the light of divergent views expressed by two Division Benches of this Court in Kurian v. State – 1989 (1) KLT (SN) 37 – Case No.60 and State of Kerala v. Monu Surendran – 1990 (1) KLT 53, regarding the right to cross-examine an approver, an authoritative pronouncement must come from a larger Bench. 2. The appellants in this batch of appeals were the accused in the same or different cases popularly known as “the mark list cases” tried by the Special Sessions Court, Thiruvananthapuram upon a committal. For recording the conviction against the appellants, the trial court had, inter alia, relied on the statement recorded under Sec.306(4)(a) Cr.P.C. of one Anandan who was made an approver. The said Anandan died prior to the trial of the cases before the Special Sessions Court. The main argument on behalf of the appellants is that the evidence given by the deceased approver under Sec.306 (4)(a) Cr.P.C. should not have been relied on by the trial court since the same was inadmissible under Sec.33 of the Evidence Act because the appellants who were the adverse party in the proceedings before the Magistrate taking cognizance of the offences, did not have the right and the opportunity to cross-examine the approver within the meaning of the 2nd limb of the proviso to Sec. 33 of the Evidence Act. There is no dispute that some of the appellants had cross-examined the approver during his examination under Sec.306 (4)(a) Cr.P.C. pursuant to a remit from this Court at the instance of the State (and not at the instance of the accused) which contended that the committal of those cases to the Sessions Court and subsequent making over of the same to the Assistant Sessions Court for trial were bad inter-alia for the failure to cross-examine the approver by the accused. It is the contention of the appellants that in those cases where the accused had cross-examined the approver, it was not as of right within the meaning of the second limb of the proviso to Sec.33 of the Evidence Act and that in those cases where the accused had not cross-examined the approver they had neither the right nor the opportunity to cross-examine the approver within the meaning of the above provision. 3. We heard Senior Advocate Sri. M.K. Damodaran, Senior Advocate Sri G. Janardhana Kurup and Advocate Sri Surendra Mohan representing all the appellants and Advocate Sri. Sujith Mathew Jose, the learned Public Prosecutor who represented the State. 4. The learned Public Prosecutor made the following submissions before us opposing the appellants on the above issue:- The decision of the Division Bench reported in 1990 (1) KLT 53 – State of Kerala v. Monu Surendran was rendered in one of the cases arising from the very same batch. It has correctly laid down the law that during the examination of the approver as a witness under Sec.306(4)(a) in the court of the Magistrate taking cognizance, the accused has a right to cross-examine the approver. Sec.273 Cr.P.C. states that “except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader”. Sec.137 of the Evidence Act indicates that examination of a witness not only includes examination-in-chief but also cross-examination. There is a subtle distinction between the examination of an approver as a witness under Sec.306(4)(a) and the examination of a witness under Secs.200 and 202 Cr.P.C. While in the case of the former, the approver is examined at the post-cognizance stage, in the case of the latter the examination is at the pre-cognizance stage. When the Chief Judicial Magistrate tenders pardon to an accomplice during the stage of an investigation he is not taking cognizance of an offence. When the Chief Judicial Magistrate tenders pardon to an accomplice during the stage of an investigation he is not taking cognizance of an offence. But when the Magistrate taking cognizance of the offence examines the approver under Sec.306(4)(a) the accused has a right to cross-examine the approver unlike in the case of a witness examined in an enquiry under Sec.202 Cr.P.C. It is true that there are observations in (Suresh Chandra Bahri v. State of Bihar – 1995 SCC (Crl) 60, Ranadhir Basu v. State of West Bengal (2000) 3 SCC 161 and State of Himachal Pradesh v. Surinder Mohan and Others - (2000) 2 SCC 396) to the effect that the accused have no right of cross-examination of the approver examined under Sec.306 (4) Cr.P.C. But every decision has to be understood with reference to the facts situation obtained in such case, as has been held in Padma Sundara Rao v. State of T.N. 2002 (3) SCC 533 and Haryana Financial Corporation v. Jagdamba Oil Mills 2002 (3) SCC 496. Hence those accused who had cross-examined the approver had the opportunity to do so and the cross-examination was also as of right making the evidence of the approver admissible under Sec.33 of the Evidence Act. Opportunity to cross-examine does not mean actual cross-examination but only providing a chance to cross-examine and it is for the accused to avail of the same. Hence, those accused persons who did not cross-examine the approver, were not availing of the opportunity to do so in spite of having been given a right to cross-examine the approver and the evidence of the approver, in the circumstances of the case, is admissible under Sec.33 of the Evidence Act in the case of those accused persons as well. 5. We are afraid that we cannot agree with the above submissions made on behalf of the State. It is common ground that the statement of the approver examined under Sec.306(4)(a) Cr.P.C. would be relevant and admissible under Sec.33 of the Evidence Act only if the accused persons not only had the “right” but also the “opportunity” to cross-examine the approver at that stage within the meaning of the second limb of the proviso to Sec.33 which has used the said expressions conjunctively and not disjunctively. The argument of the learned Public Prosecutor that the examination of witnesses under Sec.200 and 202 Cr.P.C. is at the pre-cognizance stage stems from a misconception of the law. There is indeed a popular misconception that a Magistrate is supposed to take cognizance only when he actually records the sworn statement of the complainant and his witnesses if any, and issues process to the accused. The correct legal position is that when a Magistrate on receiving a complaint applies his mind and decides to proceed under the various provisions such as Secs.200 or 202 of Chapter XV Cr.P.C., the Magistrate must be held to have taken cognizance of the offence mentioned in the complaint. If, however, the Magistrate, instead of proceedings under Chapter XI Cr.P.C., decides to forward the complaint to the police for investigation under Sec.156(3) Cr.P.C. or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. (See R.R. Chari v. State of U.P. – AIR 1951 SC 207, Gopal Das Sindhi v. State of Assam and Anr. – AIR 1961 SC 986, Jamuna Singh v. Bhadai Shah AIR 1964 SC 1541 and D. Laxminarayana v. V. Narayana – AIR 1976 SC 1672. Thus, if a Magistrate, upon receiving a complaint, after applying his mind decides to record the sworn statement of the complainant he can be said to have taken cognizance of the offence. It is not the requirement of law to actually record the sworn statement or proceed to issue summons to the accused to conclude that the Magistrate has taken cognizance of the offence mentioned in the complaint. Hence the examination of the complainant and his witnesses under Sec.200 and the subsequent inquiry if any, under Sec.202 Cr.P.C. after postponing the issue of process against the accused, are all steps taken in the proceedings at the post-cognizance stage. 6. It is now well settled that during the course of inquiry under Sec.202 Cr.P.C. the accused has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit the accused to do so and that it would not be open to the Magistrate to put any question to those witnesses at the instance of the person shown as the accused against whom process has not been issued. (See the decision of a four-judge Bench of the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose @ Chabi Bose – AIR 1963 SC 1430). The scope of inquiry under Sec.202 Cr.P.C. is a very limited one and that is to find out whether there are sufficient ground for proceeding against the accused who has no right to participate therein much less a right to cross-examine any witness examined by the prosecution, but he may remain present only with a view to be informed of what is going on. (See Sashi Jena v. Khadal Swain – AIR 2004 SC 1492). 7. Even though reliance was placed by the counsel for the appellants on the decision reported in 2001 (2) KLT 767 – Gopalakrishnan v. State of Kerala to contend for the position that in a warrant case instituted on a private complaint the accused has no right to cross-examine the prosecution witnesses whose evidence is recorded under Sec.244 Cr.P.C., the said provision is not similarly worded as Secs.200, 202 or 306 (4)(a) Cr.P.C. and, therefore, no analogy can be drawn therefrom. 8. Both under Sections 200 and 202 Cr.P.C. what is contemplated is examination of witnesses. Likewise, under Sec.306(4)(a) also what is envisaged is examination of the approver as a witness. It has already been seen that during the course of examination of witnesses under Sec.200 and 202 Cr.P.C. the accused has no right to cross-examine them. What is to be seen now is as to whether the examination of the approver as a witness under Sec.306(4)(a) Cr.P.C. is anyway different from the examination of a witness under Sec.202 Cr.P.C. 9. It may be relevant in this context to examine the mechanics behind the tender of pardon to an accomplice and his examination before the Magistrate. While the Chief Judicial Magistrate or the Metropolitan Magistrate as well as a Magistrate of First Class have the power to tender pardon to an accomplice under Sec.306(1) Cr.P.C. a close reading of the said provision will indicate that in the case of a Chief Judicial Magistrate or a Metropolitan Magistrate, the power to tender pardon to an accomplice is available not only during the stage of inquiry or trial but also during the stage of investigation and such Chief Judicial Magistrate or Metropolitan Magistrate, as the case may be, need not be himself enquiring into or trying the offence. But in the case of a Magistrate of First Class, the power to tender pardon to an accomplice can be exercised only by the Magistrate enquiring into or trying the offence and the power is available to be exercised only at the stage of such inquiry or trial and no such power is given at the stage of investigation. (Vide A. Devendran v. State of T.N. 1997 (11) SCC 720). The above provision will further show that the person to whom the pardon is tendered need not be an accused. It is enough if he is directly or indirectly concerned in or privy to an offence of the category falling under Sec.306(2). That is presumably why the title of the Section only mentions the word “accomplice” and not “accused”. Sec.306(2) indicates the category of offences to which tender of pardon to an accomplice could be given under the said provision. Sec.306(3) lays down the procedure for tender of pardon. Every Magistrate who tenders a pardon under sub Sec. (1) of Sec.306 is bound to record – a) his reason for so doing b) whether the tender was or was not accepted by the person to whom it was made. Sub Section (2) of Sec.308 indicates that the statement of the person accepting the tender pardon is to be recorded by the Magistrate under Sec.164 Cr.P.C. By virtue of Sec.306(1) tender of pardon to an accomplice can only be on condition that he will make a full and true disclosure of the entire circumstances within his knowledge relating to the offence. Thus, when the accomplice in his statement under Sec.164 Cr.P.C. accepts the tender of pardon made by the Magistrate, it is subject to the condition that he will make a full and true disclosure of the entire circumstances within his knowledge. 10. The object of the provision for tendering pardon to an accomplice is to get evidence in cases involving grave offences alleged to have been committed by several persons under circumstances making it difficult to get any evidence otherwise. No clue or trace of the offence might have been left behind by the perpetrators of the crime. 10. The object of the provision for tendering pardon to an accomplice is to get evidence in cases involving grave offences alleged to have been committed by several persons under circumstances making it difficult to get any evidence otherwise. No clue or trace of the offence might have been left behind by the perpetrators of the crime. The dominant purpose of pardon is that the culprits behind such heinous and grave crimes do not go unpunished if a co-participant of the crime comes forward offering to make a clean brest of his own complicity as also the complicity of the other offenders. Evidence is accordingly collected by tendering pardon to a person supposed to have been directly or indirectly concerned in or privy to the offence. What is tendered is a conditional pardon. The condition is that he will make a full and true disclosure of the entire circumstances within his knowledge concerning the offence and concerning every other person involved in the commission of the offence. The conditional pardon so tendered is thus a contract between the accomplice and the State and the consideration for the same qua the accomplice is the exoneration from liability and the consideration qua the State is the agreement to make a full and true disclosure, (See In re. Chief Judicial Magistrate, Trvinandrum – 1988 Crl.L.J. 812 and Narayan Chethanram Chaudhary v. State of Maharashtra – 2000 (8) SCC 457). Once pardon is granted to an accused he ceases to be an accused person and becomes a witness for the prosecution (See State (Delhi Administration) v. Jagjit Singh – AIR 1989 SC 598). When the approver resiles from the agreement and breaks the conditional pardon, the contract is broken and the State becomes entitled to prosecute him by recourse to Sec.308 Cr.P.C. (Vide Para 6 of 1988 Crl.L.J.812 (Supra)). It is to ensure that the approver who has accepted the conditional pardon, makes a full and true disclosure of the entire facts within his knowledge, that he is examined as a witness before the Magistrate taking cognizance of the offence under Sec.306(4)(a) of Cr.P.C. The said provision further mandates that the approver shall be examined in the subsequent trial also. 11. 11. What now falls to be considered is as to whether there is any difference in the nature of enquiry under Sec.202 Cr.P.C. and Sec.306(4) Cr.P.C. and whether the accused persons have a right to cross-examine the approver during his examination as a witness before the Magistrate taking cognizance under Sec.306(4)(a) Cr.P.C. If the said examination of the approver is akin to the examination of witnesses under Sec.200 and 202 Cr.P.C., then, as has already been seen, the accused have no right to cross-examine the approver at that stage. That was the view taken by a learned Single Judge of this Court in 1988 Crl.L.J. 812 (supra) referred to above. The said decision was relied on and followed by a Division Bench of this Court in Kurian v. State – 1989 (1) KLT S.N. Case No.60. However, in a subsequent Division Bench in State of Kerala v. Monu Surendran 1990 (1) KLT 53, the very same learned Judge (U.L. Bhat, J.) who rendered the decision for the Bench in Kurian v. State, speaking for the Bench in Monu Surendran’s case observed that in the light of the decisions in Sanjay Gandhi v. Union of India – AIR 1978 SC 514 and State (Delhi Administration) v. Jaggit Singh – AIR 1989 SC 598, the accused have a right to cross-examine the approver examined under Sec. 306(4)(a) and that the above decisions of the Apex Court were not brought to the notice of the Division Bench in Kurian v. State. The later Division Bench also held that the decisions of the Single Judge in In re. Chief Judl. Magistrate, Trivandrum and that of the Division Bench in Kurian V. State were per incuriam and directed the Chief Judl. Magistrate, Trivandrum (who had committed some of the cases to the Sessions Court without examining the approver) to examine the approver giving an opportunity to the accused to cross-examine the approver and then to deal with the matter in accordance with law. It was pursuant to the above direction that the approver was examined by the Chief Judl. Magistrate and some of the appellants had cross-examined the approver also. 12. It was pursuant to the above direction that the approver was examined by the Chief Judl. Magistrate and some of the appellants had cross-examined the approver also. 12. In Sanjay Gandhi v. Union of India – two Judges Bench of the Supreme Court observed as follows:- “We have heard counsel on both sides and proceed to elucidate certain clear propositions under the new Code bearing upon the committal of cases where the offence is triable exclusively by the Court of Session. The Committing Magistrate in such cases has no power to discharge the accused. Nor has he power to take oral evidence save where a specific provision like S.306 enjoins. From this it follows that the argument that the accused has to cross-examine is out of bounds for the Magistrate save in the case of approvers. No examination-in-chief, no cross-examination”. The above observation was made in the backdrop of a grievance raised by the accused therein that he did not get sufficient time before the committal court to inspect the voluminous police records running into about 20,000 pages and the thrust of the argument was that the accused has a right of cross-examination of the prosecution witnesses before the committal court. Even though some breathing time was granted to the accused by the Apex Court, the opportunity to cross-examine the witnesses was not granted. 13. In Devendran v. State of T.N. – 1997 (11) SCC 720, the Chief Judicial Magistrate granted pardon to one of the accused after the committal of the case to the Court of Sessions which court alone could grant pardon to the accused in view of Sec.307 Cr.P.C. This was held to be an irregularity not curable under Sec.465 Cr.P.C. While evaluating the evidence, the Supreme Court eschewed the evidence of the approver from consideration. Hence, on facts, the said decision has no application to the present cases. 14. In State (Delhi Administration) v. Jaggit Singh – AIR 1989 SC 598 = 1989 Suppl. (2) SCC 770 what has been held is that examination of the approver both in the committal court as well as the trial court is mandatory. Both sides do not dispute the above proposition. The only dispute is as to whether the expression “examination” would include cross-examination. 15. In Suresh Chandra Bahri v. State of Bihar (1995 Suppl. (2) SCC 770 what has been held is that examination of the approver both in the committal court as well as the trial court is mandatory. Both sides do not dispute the above proposition. The only dispute is as to whether the expression “examination” would include cross-examination. 15. In Suresh Chandra Bahri v. State of Bihar (1995 Suppl. (1) SCC 80) a reading of paragraph 31 thereof will show that the defect of non-examination of the approver before the Chief Judl. Magistrate was rectified by a remand from the Sessions Court to the Chief Judicial Magistrate who thereafter complied with the requirement under Sec.306(4) Cr.P.C. It was therefore, held that the subsequent trial was not vitiated for the alleged non-compliance of Sec.306(4)(a) Cr.P.C. the compliance of which was held to be mandatory. 16. In Narayan Chetanram Chaudhary & Another v. State of Maharashtra –2000 (8) SCC 547 the application for pardon was filed under Sec.307 Cr.P.C. after the committal and before trial. Hence there was no obligation on the trial court or a right in favour of the accused in insist on compliance with the requirement under Section 306 (4). 17. In Ranadhir Basu v. State of West Bengal (2000) 3 SCC 161 the question pointedly arose as to whether the accused have a right of cross-examination of the approver during his examination under Sec.306 (4)(a) of Cr.P.C. This is what the apex court held in paragraph 7: “It was contended by Mr. Muralidhar, learned counsel appearing for the appellant that Sudipa was not “examined as a witness” as contemplated by Section 306(4) Cr.P.C. He submitted that Sudipa was examined by the Magistrate in his chamber and not in the open court and at that time the accused were not kept present. Her evidence was subjected to cross-examination. In support of his submission he relied upon the decision of this Court in Suresh Chandra Bahri v. State of Bihar. In that case this Court after pointing out the object and purpose of enacting Section 306(4) Cr.P.C. had ruled that since the provision had been made for the benefit of the accused it must be regarded as mandatory. It had observed therein that: (SCC p.101, para 30). In that case this Court after pointing out the object and purpose of enacting Section 306(4) Cr.P.C. had ruled that since the provision had been made for the benefit of the accused it must be regarded as mandatory. It had observed therein that: (SCC p.101, para 30). “The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing court itself at the very threshold…” (emphasis supplied) From this observation it does not follow that the person who is granted pardon must be examined in the presence of the accused and that the accused has a right to appear and cross-examine him at that stage also. As pointed out by this Court in that case the object is to provide an opportunity to the accused to show to the Court that the approver’s evidence at the trial is untrustworthy in view of the contradictions or improvements made by him during his evidence at the trial. Considering the object and purpose of examining the person accepting tender of pardon as a witness is thus limited. The proceedings which takes place before the Magistrate at that stage is neither an inquiry nor a trial. Therefore, the submission of the learned counsel that Sudipa should have been examined as a witness in open court and not in the chamber and that while she was examined the Magistrate should have kept the accused present and afforded to them an opportunity to cross-examine Sudipa cannot be accepted. The phrase “examination of a witness” does not necessarily mean examination and cross-examination that witness. What type of examination of a witness is contemplated would depend upon the object and purpose of that provision. Section 202 Cr.P.C. also contemplates examination of witness yet it has been held, considering the object and purpose of that provision, that the accused has no locus standi at that stage. (Emphasis supplied) 18. In State of Himachal Pradesh v. Surinder Mohan and Others ((2000) 2 SCC 396) the approver was examined under Sec.306(4) (a) Cr.P.C. before the Chief Judl. Section 202 Cr.P.C. also contemplates examination of witness yet it has been held, considering the object and purpose of that provision, that the accused has no locus standi at that stage. (Emphasis supplied) 18. In State of Himachal Pradesh v. Surinder Mohan and Others ((2000) 2 SCC 396) the approver was examined under Sec.306(4) (a) Cr.P.C. before the Chief Judl. Magistrate and he was subsequently examined and cross-examined during trial before the Court of Session. At the stage of arguments before the Sessions Court, it was contended for the first time that failure to give an opportunity for the accused to cross-examine the approver before committal court would vitiate the trial. The said contention was repelled by the Supreme Court holding that the said contention was raised belatedly and that even if the accused had the right to cross-examine the approver when examined under Sec.306(4)(a) Cr.P.C. the defect would stand cured under Sec.465 Cr.P.C. Dealing with the contention of the accused regarding the alleged right of cross-examination, this is what the apex court held in para 11: “From the aforesaid ingredients, it is abundantly clear that at the stage of investigation, inquiry or trial of the offence, the person to whom pardon is to be granted, is to be examined for collecting the evidence of a person who is directly or indirectly concerned in or privy to an offence. At the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross-examination would arise only at the time of trial. During the course of investigation by the police, the question of cross-examination by the accused does not arise. Similarly, under Sec.200 Cr.P.C. when the Magistrate before taking cognizance of the offence, that is, before issuing process holds the inquiry, the accused has no right to be heard, and, therefore, the question of cross-examination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for cross-examination and thereafter during trial if he is examined and cross-examined then there is no question of any prejudice caused to the accused. Further, the person to whom pardon is granted, is examined but is not offered for cross-examination and thereafter during trial if he is examined and cross-examined then there is no question of any prejudice caused to the accused. In such cases, at the most the accused may lose the chance to cross-examine the approver twice, that is to say, once before committal and the other at the time of trial.” It is pertinent to note that in paragraph 12 of the above decision the apex court has adverted to the decision of the learned Single Judge of this Court reported in In re. Chief Judicial Magistrate, Trvinandrum – 1988 Crl.L.J. 812 and what is important to observe is that the apex court has not disapproved the said decision which was held to be one rendered per incuriam by the Division Bench of this Court in Monu Surendran. 19. Going by the observation in Ranadhir Basu and Surindra Mohan particularly Ranadhir Basu, the apex court had pointedly considered the question as to whether the expression “examination” in Sec.306(4)(a) would include cross-examination and held that at that stage the accused has no right to appear and cross-examine the approver and the legal position was treated akin to an inquiry under Sec.202 Cr.P.C. In the case of a witness examined during an inquiry under Sec.202 Cr.P.C., the question pointedly arose before the Supreme Court as to whether his statement recorded by the magistrate and favourable to the prosecution would be admissible under Sec.33 of the Evidence Act if such witness had turned hostile to the prosecution during the subsequent trial. After holding that the accused had no right and opportunity to cross-examine a prosecution witness examined during the course of inquiry under Sec.202 Cr.P.C. the apex court held as follows in Paragraph 10. “Thus, we have no difficulty in holding that as during the course of inquiry under Sec.202 of the Code an accused has no right much less opportunity to cross-examine a prosecution witness, statement of such a witness recorded during the course of the inquiry is not admissible in evidence under Sec.33 of the Act and, consequently, the same cannot form the basis of conviction of an accused”. 20. 20. In the light of the decisions of the apex court adverted to above, we are of the considered view that Monu Surendran has not been correctly decided and with due respect we overrule the same and hold that In re. Chief Judicial Magistrate, (Supra) and Kurian v. State of Kerala were correctly decided. There is no dispute that those appellants/accused who had cross-examined the approver during his examination under Section 306(4)(a) Cr.P.C. was pursuant to the direction given to the Chief Judicial Magistrate in Monu Surendran’s case wherein it was the State which sought for the direction to examine the approver giving opportunity to the accused to cross-examine him. Thus, cross-examination was virtually thrust upon the appellants/accused without their asking for it. In such situation, the cross-examination conducted by them cannot be said to be as of right. 21. We accordingly answer this reference as follows:- Since the appellants/accused had no right to cross-examine the approver while he was examined before the Chief Judicial Magistrate under Section 306(4)(a) Cr.P.C., even if any of them had an opportunity to cross-examine the approver at that stage, the statement of the approver examined under Sec.306(4)(a) Cr.P.C. is not relevant or admissible under Sec.33 of the Evidence Act during the subsequent trial in which the approver was not available for examination by reason of his death in the meanwhile. 22. We, however, make it clear that we have not examined the admissibility under Sec.32(3) of the Evidence Act of the aforesaid statement of the approver. That is a matter to be considered by the appropriate Bench which finally hears these appeals. The Registry shall take steps to post the appeals before the appropriate Court as per the roster for disposal of the same on merits. Padmanabhan Nair, J. 23. I have had the privilege of reading the order written by my learned brother Ramkumar, J. I fully agree with the view taken by my learned brother. But, I would like to add a few words of my own also. 24. During 1980s, some students for securing admission to the professional courses, such as Medicine and Engineering, produced mark lists containing very high marks. Subsequently, it was revealed that those mark lists were not genuine mark lists issued by the Kerala University, but fabricated by the accused. A number of cases were registered and those cases are commonly known as “mark list cases”. 25. Subsequently, it was revealed that those mark lists were not genuine mark lists issued by the Kerala University, but fabricated by the accused. A number of cases were registered and those cases are commonly known as “mark list cases”. 25. One Anandan, who was one of the accused, sought pardon on the ground that he will truly and correctly give the details of the case including his role in the commission of the offence. In view of the provisions contained in Section 306(5) of the Code of Criminal Procedure, when a person becomes approver, the case is to be committed to the Court of Sessions for trial. 26. In In re. Chief Judicial Magistrate, Trvinandrum (supra), a learned Single Judge of this Court took the view that the accused have no right to cross-examine the approver when he was examined under Section 306(4) of the Code of Criminal Procedure. That decision was subsequently confirmed by a Division Bench of this Court in Kurian’s case (supra). In view of those decisions, the learned Magistrate recorded the statement of Anandan and committed the case to the Court of Sessions. On receipt of the records, the learned Sessions Judge made over the same to the Court of Assistant Sessions for trial. Challenging the committal order and also the order passed by the learned Sessions Judge making over the case to the Assistant Sessions Judge, the State filed Crl.R.P.399 of 1987. In the Criminal Revision Petition, the State raised two contentions. (i) In a case committed under Section 306, the learned Sessions Judge has no jurisdiction to make over the case to the Court of Assistant Sessions Judge and the Sessions Judge himself to try the case. (ii) Since the words used in Section 306 is, an approver has to be examined ‘as a witness’, he has to be examined in accordance with the provisions contained in Section 137 of the Indian Evidence Act. So, the accused have a right to cross-examine the approver at that stage. This Court by order dated 30.11.1989 found that the Sessions Judge has got power either to try the case by himself or to make over the same to the Additional/Assistant Sessions Judge in accordance with law. So, the accused have a right to cross-examine the approver at that stage. This Court by order dated 30.11.1989 found that the Sessions Judge has got power either to try the case by himself or to make over the same to the Additional/Assistant Sessions Judge in accordance with law. This Court also found that the principle laid down in Kurian’s case (supra) was not correct and an accused has a right to cross-examine the person who seeks pardon while he was examined under Section 306(4) of Cr.P.C. The committal order was quashed. 27. The approver was examined before committal Court. He was cross examined by the accused in some cases. Thereafter the cases were committed to the Special Court constituted for trial of mark list cases. Before the trial of the cases before the Special Court began, Anandan died. The Special Judge relied on his evidence tendered before the Magistrate under Section 33 of the Indian Evidence Act. The cases ended in conviction of some of the accused and these appeals are filed by the accused who were convicted. 28. The counsel appearing for the appellants in all these appeals raised a contention before the learned Single Judge that the principle laid down in Monu Surendran’s case (supra) is no longer good law and requires reconsideration (Incidentally, Monu Surendran has also filed an appeal and that is also being considered along with these appeals). It is argued that though the approver was cross-examined, the accused had no statutory right to cross-examine the approver at that stage and hence his evidence is inadmissible under Section 33 of the Indian Evidence Act. It is argued that at that stage the proceedings before the Magistrate is akin to Section 202 enquiry only and hence the accused have no right to cross-examine that witness. Section 207 of the Code of Criminal Procedure 1898, which was repealed in the year 1973, dealt with procedure in inquiries preparatory to commitment. Section 207 provides that if the case is traible exclusively by the Court of Sessions, the Magistrate shall follow the procedure prescribed under Section 207A of the Code of Criminal Procedure, 1898. Section 208 dealt with proceedings instituted otherwise than a police report. Sections 207A(b) and 208(2) of the repealed Code conferred right on the accused to cross examine the witness examined by the prosecutor. The Prosecutor’s right to re-examine those witnesses was also specifically provided. Section 208 dealt with proceedings instituted otherwise than a police report. Sections 207A(b) and 208(2) of the repealed Code conferred right on the accused to cross examine the witness examined by the prosecutor. The Prosecutor’s right to re-examine those witnesses was also specifically provided. The Code of Criminal Procedure was amended in the year 1973. Section 209 of the Code of Criminal Procedure, 1973 deals with commitment of case to Court of Session when offence is triable exclusively by it. The major change made in the present Code is the abolition of the commitment proceedings as such. There is no provision in the new Code for recording evidence in cases instituted otherwise than on a complaint. In a complaint case, the Magistrate has to record the whole of the evidence of prosecution under the proviso to Section 202(2) of the new Code. In view of the mandatory provisions of Section 306(5) of the Code of Criminal Procedure, after examining the approver the Magistrate is bound to commit the case to the Court of Sessions without making any further enquiry. 29. Section 306 of Cr.P.C., 1973 deals with tender of pardon to accomplice. It reads as follows:- “306. Tender of pardon to accomplice. – (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or the metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) xx xx xx (3) xx xx xx (4) Every person accepting a tender of pardon made under sub-section (1) – (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, - (a) commit it for trial - (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.” In view of the provisions contained in Section 306(4) and (5) of the Code, every person accepting a tender of pardon made under sub-section (1) shall be examined ‘as a witness’ and where a person has accepted a tender of pardon, the Magistrate is bound to commit the case for trial either to the Court of Session or to the Court of Special Judge, as the case may be. A combined reading of Section 306(4) and (5) along with Section 209 of the Code shows that the Magistrate need not examine any other witness, except the person accepting the tender of pardon. Though the words used in Section 306(4) are “as a witness”, it is clear that the scope of examination of the approver under Section 306(4) is similar to the examination of the witness under the proviso to Section 202(2) of the Code of Criminal Procedure, 1973. It is settled position of law that in a proceedings under Section 202(2) of the Code, the accused have no right to cross-examine the witness examined by prosecution as held in Sashi Jena’s case (supra). 30. The statement of witness in a judicial proceedings can be admitted in a subsequent judicial proceedings only if the same satisfies the provisions of Section 33 of the Evidence Act. Section 33 of the Indian Evidence Act reads as follows:- “S.33. 30. The statement of witness in a judicial proceedings can be admitted in a subsequent judicial proceedings only if the same satisfies the provisions of Section 33 of the Evidence Act. Section 33 of the Indian Evidence Act reads as follows:- “S.33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided – that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding”. So, to use the evidence of a witness in a previous judicial proceedings in the subsequent proceedings, the proceedings must be between the same parties or their representatives in interest. The adverse party in the first proceedings must have had both the right and opportunity to cross-examine the witness as held in Mulkh Raj v. Delhi Administration (AIR 1974 SC 1723). The proceedings in this case before the Magistrate was a proceedings between the same parties. The adverse party in this case is the accused. They had an opportunity to cross-examine the witness in view of the decision of this Court in Monu Surendran’s case (supra). The core question is whether it can be said that the accused had a right to cross-examine late Anandan. 31. In this connection, examination of a witness in a warrant case instituted otherwise than a police report is relevant. Section 244 of the Code of Criminal Procedure, 1973, corresponds to Section 252 of the Code of Criminal Procedure, 1898 with some changes. 31. In this connection, examination of a witness in a warrant case instituted otherwise than a police report is relevant. Section 244 of the Code of Criminal Procedure, 1973, corresponds to Section 252 of the Code of Criminal Procedure, 1898 with some changes. Section 251A of the old Code lays down the procedure to be followed in the trial of warrant cases instituted on a police report and the procedure prescribed under Section 252 to 259 to be followed in warrant cases instituted otherwise than a police report. Section 252 of the old Code provides that in any case instituted otherwise than a police report when the accused appears or brought before the Magistrate, he shall take all such evidence as may be produced in support of the prosecution. The expression ‘take all such evidence as may be produced in support of prosecution’ does not mean that accused has a right to cross examine the prosecution witness before framing charges. There is no statutory provision in Section 252 of the old Code conferring a right of cross-examination on the accused, though in appropriate cases the Magistrate may permit the accused to cross-examine the witness. 32. In Emperor v. C.A. Mathews (AIR 1929 Calcutta 822), the question arose as to whether the evidence of witness recorded before it reached the stage of Section 256 is admissible under Section 33 of the Indian Evidence Act. It was held as follows:- “In a warrant case until the stage provided for in S.256 is reached the accused has no right to cross-examine and consequently the evidence of a witness given before framing of the charge is not admissible under S.33.” In Rex v. Daya Shankar Jaitly (AIR 1950 Allahabad 167), a Division Bench of the Allahabad High Court considered the question whether after the examination of a prosecution witness under Section 252 of the Code of Criminal Procedure, 1898 the accused have a right to cross-examine him. Though the question arose only incidentally in that case, it was held as ‘obiter’ a follows:- “The fact that the right of cross-examination is not expressly mentioned in S.252 is of no significance whatsoever. Though the question arose only incidentally in that case, it was held as ‘obiter’ a follows:- “The fact that the right of cross-examination is not expressly mentioned in S.252 is of no significance whatsoever. …………… Even though under the law the accused may not have a right of cross-examination of the prosecution witnesses when they are examined under S.252, Criminal P.C., still, where the accused is becomes vested with the right and if he exercises the right so given, S.33 is fully applicable and the evidence can be brought on record.” In Banwari Lal v. The State (AIR 1956 Allahabad 385), another Division Bench of the Allahabad High Court after considering the observations made in Daya Shankar Jaitly’s case (supra) held as follows:- “The word “right” used in S.33 means a right conferred by a statutory provision such as that contained in S.138, Evidence Act and not a right accruing from mere permission granted by the Court. If a Court permits an accused to cross-examine a witness, it is nothing but giving him an opportunity of cross-examining him and S.33 expressly requires a right in addition to an opportunity”. 33. In Gopalakrishnan v. State of Kerala (2001 [2] KLT 767) a learned Single Judge of this Court held that Section 244 of the Code of Criminal Procedure 1973 also does not confer on the accused an absolute right to cross-examine the prosecution witness, though it does not prohibit cross-examination before framing charge. Though Section 244 of the Code of Criminal Procedure, 1973 is not similarly worded as Section 306(4)(a) of the Code of Criminal Procedure, that Section also does not confer any right of cross-examination of the witness on the accused before framing charge. There is no provision in Section 306 of the Code which confers an absolute right of cross-examination of the approver on the accused before the committal Magistrate. 34. The word “evidence” means all statements which the Court permits or requires to be made before it by the witness. Sections 137 and 138 of the Evidence Act deals with examination of witnesses. The examination includes cross-examination and re-examination. Sections 137 and 138 of the Evidence Act reads as follows:- “137. Examination-in-chief.- The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination. Sections 137 and 138 of the Evidence Act deals with examination of witnesses. The examination includes cross-examination and re-examination. Sections 137 and 138 of the Evidence Act reads as follows:- “137. Examination-in-chief.- The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination. – The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. 138. Order of examinations.- Witnesses shall be first examined, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts, of which the witness testified on his examination-in-chief. Director of re-examination.- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter”. An accused in a criminal case can be said to have a statutory right or cross-examination of a witness examined by the prosecutor only if the same is conferred on him under the provisions of the Code of Criminal Procedure. There is no provision in Section 306 of the Code of Criminal Procedure which confers an absolute right of cross examination on the accused in a proceedings under Section 306(4) of the Code of Criminal Procedure before the committal Magistrate. So, when a person whose tender of pardon is to be accepted is examined under Section 306(4) Cr.P.C., he is not examined as a witness examined during trial of that case. The accused have no statutory right to cross-examine the approver at that stage as held in Ranadhir Basu’s case (supra). So, the statement made by an approver at the time of enquiry under Section 306(4) is not admissible under Section 33 of the Indian Evidence Act. Krishnan, J. 35. I had gone through the order prepared by my learned brother V. Ramkumar, J. and also the additional points added by my learned brother K. Padmanabhan Nair, J. I fully concur with the views expressed by my learned brothers and I do not want to add anything further, as each and every point has been exhaustively dealt with. Thus, I fully agree with the views expressed by them.